Johnson v. Johnson

• Decision Date: 17 May 1901
• Citation: 156 Ind. 592,60 N.E. 451
• Parties: JOHNSON et al. v. JOHNSON.
• Court: Indiana Supreme Court

156 Ind. 592

60 N.E. 451

JOHNSON et al.

v.JOHNSON.

Supreme Court of Indiana.

May 17, 1901.

Appeal from circuit court, Wells county; E. C. Vaughn, Judge.

Action by Adrienne A. Johnson against Solomon Johnson, administrator of the estate of James N. Johnson, deceased, and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.Dailey, Simmons & Dailey and Foster & Davis, for appellants. A. N. Martin, W. H. Eichhorn, and Jay A. Hindman, for appellee.

MONKS, J.

Appellee brought this action against appellants on two promissory notes signed by appellant James Johnson, payable to James N. Johnson. It was averred that “said promissory notes were assigned and transferred by said payee by delivery, for a valuable consideration, to appellee, who is the owner thereof; that said James N. Johnson died, and afterwards appellant Solomon Johnson was duly appointed administrator of his said estate, and he is made a party defendant to answer as to any interest said estate may have in said notes.” Appellant James Johnson filed a plea of non est factum as to both of said promissory notes. Appellant Solomon Johnson, administrator, answered by a general denial. A trial by jury resulted in a verdict for appellee for $7,196.29, and over a separate motion by each appellant for a new trial a judgment was rendered for said sum against appellant James Johnson, and it was adjudged that the estate of James N. Johnson had no interest in said promissory notes. The errors assigned, and not waived by a failure to argue the same, call in question the action of the court in overruling the separate motion of each appellant for a new trial.

It is first insisted by appellee that no bill of exceptions containing the evidence is in the record. Appellants filed a præcipe, as provided in section 661, Burns' Rev. St. 1894 (section 649, Rev. St. 1881; section 649, Horner's Rev. St. 1897), and designated what papers and entries the clerk should certify to this court. Only such papers and entries as are designated in said præcipe are properly a part of the record on appeal. Said præcipe did not direct or request the clerk to certify to this court said original bill of exceptions containing the evidence in any manner. Under such conditions, if said original bill of exceptions containing the evidence was embodied in the transcript, and properly authenticated, the same would not be a part of the record and could not be considered. McCaslin v. Manufacturing Co., 155 Ind. 298, 58 N. E. 67, and cases cited; Brown v. Armfield, 155 Ind. 150, 57 N. E. 722. Said bill of exceptions is not in the record, and cannot be considered for another reason. After the general certificate of the clerk that the “transcript contains true and complete copies of all the papers and order book entries in the cause,” there is attached to the transcript what purports to be an original bill of exceptions containing the evidence. Two special certificates of the clerk of the trial court are attached at the close of the original bill of exceptions, containing the evidence, but the seal of the trial court is not affixed to either of said certificates. Without such seal, said certificates are of no effect for any purpose. Savings Union v. Byrd, 154 Ind. 47, 55 N. E. 867;Carpenter v. Schaeffer, 154 Ind. 694, 57 N. E. 105;Board of Com'rs of Monroe Co. v. State (No. 19,174, this term) 60 N. E. 344. The general certificate of the clerk should not precede or form a part of the bill of exceptions containing the evidence, but should be at the conclusion of the transcript, and authenticate the bill of exceptions containing the evidence, as well as all other papers and entries embraced in the transcript. Ewbank, Man. § 11, p. 177, and cases cited.

Each appellant assigned the giving of in structions 3, 4, and 17 requested by appellee as causes for a new trial. The evidence not being in the record, neither one of said instructions can be held erroneous if the same would be correct under any evidence that might have been given under the issues. Wenning v. Teeple, 144 Ind. 189, 194, 41 N. E. 600. The part of instruction 3 objected to is as follows: “The said administrator, Solomon Johnson, has filed an answer of simple general denial to each...